* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 30 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JOSEPH E. RICH, M.D., an individual,

Plaintiff-Appellant,

v. MED-NATIONAL INC.,

Defendant-Appellee, and
THE DEPARTMENT OF THE AIR FORCE; SHEILA A. WIDNALL, in her official capacity as Secretary of the Air Force, LT. COLONEL KATHERINE E. SCHEIRMAN, COLONEL DAVID BISSELL, and ROBERT S. WELLBORN, JR.,

Defendants. No. 96-6235 (D.C. No. CIV-95-616-A) (W.D. Okla.)

ORDER AND JUDGMENT *-2-

Before ANDERSON , BARRETT , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Joseph E. Rich, M.D, brought this action against defendants relating to his termination as a physician working under contract with Med-National, Inc., at Tinker Air Force Base near O klahoma City. Plaintiff’s claims against defendants Department of the Air For ce, Widnall, Scheirman, Bissell, and Wellborn were dismissed and are not part of this appeal. Against the remaining defendant, Med-National, plaintiff assert ed claims for breach of contract, breach of implied covenant of good faith and fair dealing, fraudulent inducement to contract, and violation of Oklahoma w age law. The district court granted summary judgment in Med-National’s favor onthe good faith and fair dealing and Oklahoma wage law claims, and denied pl aintiff’s motion for summary judgment on his breach of contract claim. At trial, the district court granted Med-National’s motion for judgment as a matter of law on the fraudulent inducement claim, and the jury rendered a verdict a gainst plaintiff on his breach-3-

of contract claim. Plaintiff appeals, raising issu es relating only to his breach of contract and Oklahoma wage law claims.

I The relevant facts briefly stated are these. Med-N ational had a contract with the Air Force to provide physician services atthe Tinker Air Force Base Hospital and Clinic. In late 1993, Med-National so licited and eventually hired plaintiff under contract to fill an OB-GYN positionunder the Air Force contract beginning on January 3, 1994, for the remaining lif e of its contract with the Air Force, which was scheduled to end in 1998. Plainti ff’s contract with Med-National (as well as Med-National’s contract wi th the Air Force) required that he obtain privileges to practice at Tinker fro m the base’s credentialing committee. To obtain privileges, plaintiff had to provide, through Med-National, a history of his licensing and privileges in other states and at other hospitals. The committee granted plaintiff provisional privileges on January 3, 1994, which allowed him to practice, and granted him full privi leges three months later. Plaintiff practiced at Tinker from January 2 to May 26, 1994. During this time, there were several official complaints regard ing his practice. On May 26, 1994, the credentials committee placed plaintiff’s privileges to practice at Tinker in abeyance due to his providing allegedly incomple te and misleading information regarding his previous licensing in Kansas and Kentucky. The initial abeyance-4-

period was fourteen days, which was extended anothe r fourteen days on June 16. On June 23, 1994, Med-National summarily terminatedits contract with plaintiff, its stated reasons being the abeyance of his privil eges and the complaints regarding his performance. Section XII of plaintiff’s contract with Med-Nation al provided that it could be terminated upon written or oral notice on the oc currence of any of the following events: 1. Whenever the Physician shall cease to be a “Licen sed Physician” in the state or states in which he is li censed to practice medicine. . . . 2. The death of the Physician (in which case notice shall not be necessary). 3. The inability of the Physician to practice medici ne due to physical or mental disability exceeding a period of thirty (30) days. 4. Whenever the Physician fails or refuses to perform faithfully and diligently the duties as set forth in the Contr act. 5. The Company shall have the right to terminate thi s Agreement with thirty (30) days notice being given to the Phy sician at any time for cause, or as stated herein. . . . 6. The Physician may terminate this Agreement by giv ing thirty (30) days notice to the Company of his intent, stat ing reasons and exact date of departure. 7. Failure to obtain approval of the Credentials Com mittee and/or the Credentials Review Organization shall give the Company the right to terminate this Agreement at any time by gi ving notice to the Physician of his failure to receive approval. . . .-5-

Appellant’s App. Vol. I at 72-73. In terminating p laintiff, Med-National specifically relied on paragraphs 4, 5, and 7 above . See id. at 81. It did not compensate plaintiff for any time after May 26, the date his privileges were first placed in abeyance. Plaintiff subsequently brought this action. In his breach of contract claim, he contended that Med-National terminated him witho ut cause and that in any event he was entitled to thirty-days’ notice prior to termination, which Med-National did not provide. In his Oklahoma wage law claim, he contended that Med-National owed him for unpaid compensation for the period from May 26 to July 23, 1994, the date he contended the contrac t could have been terminated considering the thirty-days’ notice requirement. O n appeal, plaintiff raises four issues: (1) the district court erred in denying hi s motion for summary judgment on his breach of contract claim; (2) the jury’s ver dict against him on his breach of contract claim is not supported by sufficient evid ence; (3) the district court erred in refusing to instruct the jury regarding contractambiguity and construction; and (4) the district court erred in granting summary ju dgment against him on his Oklahoma wage law claim.-6- II A. Denial of Summary Judgment Plaintiff first contends that the district court er red in denying summary judgment on that part of his breach of contract cla im in which he contended he was entitled to thirty-days’ notice prior to termin ation. Plaintiff contended that paragraph 5 of the termination clause in the contra ct, which Med-National cited in its termination letter, required that he be provide d thirty-days’ notice prior to his termination. In denying summary judgment, the court stated:

The Court finds that genuine issues of material fac t preclude summary judgment for either plaintiff or Med-Nation al on this issue. The [Fed. R. Civ. P.] 56(c) evidence presented by t he parties paints a confused picture of why plaintiff was terminated. According to MedNational, it was informed that the possibility of p laintiff’s privileges being reinstated was non-existent. The question is whether MedNational relied solely on ¶ XII(5) in its decision to terminate. If so, it will be liable for breach of contract for failin g to provide thirty days notice. This question involves a factual issu e that must be decided by the jury. Accordingly, summary judgmentis inappropriate on this issue. Appellant’s App. Vol. III at 652-53. Post-trial appellate review of a denial of summary judgment differs depending on the reason for the denial. Where summ ary judgment has been denied and the case proceeds to trial, we may revie w the denial of summary judgment if that denial was based on purely a legal issue. See Wolfgang v. Mid--7-

America Motorsports, Inc. , 111 F.3d 1515, 1521 (10th Cir. 1997). The same i s not true, however, where the denial is based on fac tual issues, as in this case. The denial of summary judgment based on factual dis putes is not properly reviewable on an appeal from a final judgm ent entered after trial. Whalen v. Unit Rig, Inc. , 974 F.2d 1248, 1250-51 (10th Cir., cert. denied , 507 U.S. 973, . . . (1993). “[E]ven if summary judgment was erroneously denied, the proper redress would not be through appeal of that denial but through subsequent motions for judgment as a matter of law . . . and appellate rev iew of those motions if they were denied.” Id. at 1251. Failure to renew a summary judgment argument--when denial was based onfactual disputes--in a motion for judgment as a matter of l aw under Fed. R. Civ. P. 50(a)(1) at the close of all the ev idence is considered a waiver of the issue on appeal. Allahar v. Zahora , 59 F.3d 693, 695-96 (7th Cir. 1995). Wolfgang , 111 F.3d at 1521. Plaintiff did not move for jud gment as a matter of law. We therefore will not review the district cou rt’s denial of his summary judgment motion because it did so due to factual di sputes. B. Insufficient Evidence Plaintiff next contends that the jury’s verdict that Med-National did not breach the contract by terminating him without caus e is not supported by sufficient evidence. As we noted above, however, p laintiff failed to move for judgment as a matter of law on this (or any) issue. He therefore failed to preserve this issue for appellate review, and we will not co nsider it further. See FDIC v. United Pac. Ins. Co. , 20 F.3d 1070, 1076 (10th Cir. 1994).1 Plaintiff objected to the district court’s rejectio n of three of his proposed

instructions. Proposed instruction No. 2 stated th at the jury needed to decide the meaning of certain quoted terms in the contract, in cluding the termination clause, and then stated that:

In deciding the meaning of these terms, you must de cide what the intent of the parties was when they made their cont ract. To decide what their intent was you should first examine the langu age of the contract. You may also consider the circumstances under which the parties made the contract, and what the parties themselves believed the terms meant as shown by the evidence. A contract should be interpreted so that it is reas onable and capable of being carried out, if this can be done without c hanging the intention of the parties. Appellant’s App. Vol. III at 713. Proposed instruc tion No. 3, labeled “Entire Contract,” stated that:

A contract is to be interpreted as a whole, and the overall intention of the parties is controlling over the separate parts of a contract. If possible, each part of a contract must be used t o help interpret the other parts, but if one part is wholly inconsistentwith the general intention of the parties, it should be rejected. Id. at 714. Proposed instruction No. 4, labeled “Cons truction Against Party Causing Uncertainty,” stated:

If you cannot decide the intention of the parties a fter considering Instruction Nos. ___ to ___, then you should interp ret the unclear terms in the contract most strongly against the party respon sible for the uncertainty. (continued...) -8- C. Jury Instructions Plaintiff also contends that the district court err ed in failing to instruct the jury on contract ambiguity and construction as he h ad requested. 1 In rejecting at1 (...continued)

In this case, you are instructed that Med-National drafted the contract and is the party responsible for any uncertainty. Id. at 715. Instruction Nos. 2 and 3, which were virtually identical to instructions proposed by Med-National, also included this note: “This Instruction should only be given if the Court determines that one or more t erms of the [contract] is/are ambiguous.” Id. at 713, 715. Plaintiff also objected to the court ’s instruction No. 13 “to the extent that instruction contains a state ment that the contract is clear and unambiguous.” Id. at 1455. That instruction stated in part that “[y ]ou are advised that a contract that is clear and unambiguous in it s terms is binding on all parties to the contract. Such a contract should be accepte d by you as the agreement of the parties.” Id. at 740. -9- trial plaintiff’s objections to the instructions, t he district court stated that “[t]he question, in my opinion, is not whether anything inthe contract is ambiguous, it’s which term applies to which situation, and the juryhas to decide what the situation is and then they decide which term applie s to it.” Appellant’s App. Vol. V at 1455. The court did not give any instructions to guide the jury on interpreting or construing the contract. Three day s after the trial had concluded, the court issued a written order further explaining its reasons for rejecting plaintiff’s objections, stating that plaintiff had waived any issue regarding whether the contract was ambiguous because he had f ailed to raise the issue timely. Plaintiff contends both that the objection was timely and that the court’s failure to instruct as he requested was prejudicial

. We review a district court’s decision whether to gi ve a particular instruction for abuse of discretion. See Harrison v. Eddy Potash, Inc. , 112 F.3d-10-

1437, 1442 (10th Cir. 1997), petition for cert. fil ed , 66 U.S.L.W. 3137 (Aug. 6, 1997). We conduct a de novo review to determine wh ether the instructions as a whole correctly stated the governing law and provid ed the jury with an adequate understanding of the issues and applicable standard s. See id. “Reversal is warranted only where a deficient jury instruction i s prejudicial.” Id. (quotation omitted). We conclude that the court erred in failing to give plaintiff’s requested instructions regarding contract construction and am biguity. Turning first to the court’s post-judgment determination that plaintiff waived these issues, we believe plaintiff’s objections were timely and preserved th ese issues for both the district court’s and our consideration. Fed. R. Civ. P. 51 provides that “[n]o party may assign as error the giving or the failure to give a n instruction unless that party objects thereto before the jury retires to considerits verdict, stating distinctly the matter objected to and the grounds of the objection .” This requirement allows the district court an opportunity to make changes to in structions and correct any errors, and, from an appellate standpoint, prevents a litigant from taking advantage of any error that the district court coul d have rectified. See Weir v. Federal Ins. Co. , 811 F.2d 1387, 1390 (10th Cir. 1987); Aspen Highl ands Skiing Corp. v. Aspen Skiing Co. , 738 F.2d 1509, 1514 (10th Cir. 1984), aff’d , 472 U.S. 585 (1985).2 While the court indicated in its post-judgment orde r that plaintiff’s

submission of these proposed instructions was the f irst notice to the court that plaintiff was contending that the contract was ambi guous, it also noted that [i]n the numerous summary judgment filings, plainti ff did not address the issue [of contract ambiguity], except to note t hat the contract was not ambiguous, but if it were, that any ambiguity b e construed against the defendant. Plaintiff’s Trial Brief all eges that “MedNational has argued a strained and self-serving int erpretation of the notice of termination provisions of the Agreement and has attempted to impose an ambiguity into the language of the Agr eement where none exists.” Appellant’s App. Vol. III at 751. The fact that bo th parties took contrary views of the contract language provided some indication t hat the contract may be ambiguous. Cf. Pollock v. FDIC , 17 F.3d 798, 803 n.7 (5th Cir. 1994) (“[I]t is implicit in the argument that a document which is u nambiguous in one direction necessarily involves some element that the instrume nt is, at least, not unambiguous in the other direction.”). -11- Plaintiff submitted his proposed instructions on th e first day of trial, and while the court indicated they were filed substanti ally out of time, the court did not reject the proposed instructions as untimely. 2 After the court instructed the jury, and importantly, before the jury retired, the court asked if there were any objections. That was when plaintiff raised his obj ections, which is what Rule 51 requires. In denying the objections, the court stated that it did not find the contract to be ambiguous, and there is no indicatio n the court did not understand the objections. See City of Wichita v. United States Gypsum Co. , 72 F.3d 1491, 1495 n.1 (10th Cir. 1996). The court thus was pres ented with an opportunity to make any necessary changes to the instructions, andit determined that none were-12-

necessary. Rule 51 does not require that an object ion have been previously raised for it to be effective. See Productive Automated Sys. Corp. v. CPI Sys., Inc. , 61 F.3d 620, 624 (8th Cir. 1995) (“Nothing in the rule requires that a party’s objection occur at an instructions conference or atany other particular time, provided that the party asserts an objection before the jury retires.”); Gregg v. U.S. Indus., Inc. , 887 F.2d 1462, 1467-68 & n.6 (11th Cir. 1989) (fi nding objection timely even though made after party had p reviously agreed to it at instruction conference). We thus proceed to the me rits of plaintiff’s argument. Plaintiff’s general contention is that under sectio n XII of the contract, all terminations (except those due to death) require th irty-days’ notice. In other words, plaintiff contends that paragraph 5, the onl y paragraph specifically requiring Med-National to give thirty-days’ notice, applies to all terminations including those under paragraphs 4 and 7, which Med -National claimed were the bases for termination. Plaintiff’s general positio n is that this is what the contract plainly means, but his fall-back position is that i f the contract does not plainly mean this, then it is ambiguous and should be construed in his favor. As noted earlier, the three relevant paragraphs allow termin ation on written or oral notice in the following circumstances: 4. Whenever the Physician fails or refuses to perform faithfully and diligently the duties as set forth in the Contr act.3 Although plaintiff argued in the district court that Oklahoma law applied to

the breach of contract claim, he does not challenge on appeal the court’s determination that Texas law applied. -13- 5. The Company shall have the right to terminate thi s Agreement with thirty (30) days notice being given to the Phy sician at any time for cause, or as stated herein. . . . 7. Failure to obtain approval of the Credentials Com mittee and/or the Credentials Review Organization shall give the Company the right to terminate this Agreement at any time by gi ving notice to the Physician of his failure to receive approval. . . . In denying plaintiff’s summary judgment motion, the district court had rejected plaintiff’s position, holding that the thirty-days’ notice provision applied only to paragraph 5 and that unless paragraph 5 was the sol e basis for plaintiff’s termination, he was not entitled to the notice peri od. Whether a contract is ambiguous is a question of law. See Canutillo Indep. Sch. Dist. v. National Union Fire Ins. Co. , 99 F.3d 695, 700 (5th Cir. 1996) (applying Texas law). 3 A contract is ambiguous if it is reasonably susce ptible to at least two different meanings. See id. In determining whether a contract is ambiguous, we “examine and consider the entire writ ing in an effort to harmonize and give effect to all the provisions of the contra ct so that none will be rendered meaningless.” Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983) (emphasis omitted).-14-

We agree with plaintiff that the termination provis ions are ambiguous regarding notice. Paragraph 5 requires thirty-days ’ notice for terminations “for cause, or as stated herein.” Paragraphs 4 and 7 al low terminations for particular causes--failure or refusal to perform faithfully an d diligently and failure to obtain credentials approval. Med-National contends that these particular causes fall within paragraph 5’s “exclusion” for terminations o therwise “as stated herein” that do not require thirty-days’ notice. That may be one reasonable meaning of the three paragraphs, but it is not the only one. If that were the only meaning, then paragraph 7’s provision for termination “at any time,” which clearly contemplates an exception to paragraph 5’s thirty-d ays’ notice requirement, would be superfluous. To give that provision of paragrap h 7 meaning, paragraph 5 could be read as requiring thirty-days’ notice for any te rmination for cause unless section XII elsewhere allows termination on differe nt terms. Under that interpretation, a termination under paragraph 4, wh ich omits paragraph 7’s provision for terminations “at any time,” would req uire thirty-days’ notice. Moreover, Med-National’s view that “cause” in parag raph 5 necessarily excludes all causes mentioned elsewhere in section XII leave s paragraph 5 virtually empty of any significant meaning; that is, it is difficul t to imagine a termination for cause that would be not covered by some other parag raph of section XII. In any-15-

event, the termination provisions in the contract a re poorly written and are ambiguous. Because the termination provisions are ambiguous, their interpretation becomes a factual matter. See Coker , 650 S.W.2d at 394. Proper jury instructions regarding contract interpretation thus become critical. Texas follows the general rule that ambiguous contracts should be construed against the drafter,
see, e.g. , Enell Corp. v. Longoria , 834 S.W.2d 132, 134 (Tex. Ct. App. 1992); cf. Clardy Mfg. Co. v. Marine Midlands Bus. Loans Inc. , 88 F.3d 347, 355 (5th Cir. 1996) (noting that under Texas law, the rule is dis favored but should be applied when other rules of construction fail), cert. denie d , 117 S. Ct. 740 (1997), and it is undisputed here that Med-National drafted the co ntract. We conclude that the court should have given plaintiff’s proposed instru ction No. 4 dealing with ambiguity (“Construction against Party Causing Unce rtainty”), as well as plaintiff’s proposed instruction Nos. 2 and 3, the general contract interpretation instructions. The court’s failure to give appropriate instruction s is not reversible error unless, considering the instructions as a whole, we have substantial doubt whether they properly guided the jury, see Mason v. Oklahoma Turnpike Auth. , 115 F.3d 1442, 1454 (10th Cir. 1997), and we determine the e rror to have been prejudicial,

see Harrison , 112 F.3d at 1442. The jury instructions in this case were, at best,-16-

confusing and incomplete. At the minimum, they dep rived plaintiff of the opportunity to fairly present and the jury to consi der a theory of plaintiff’s case-- ambiguity--which we have determined was an appropri ate and timely presented theory. This error was prejudicial. To fully appreciate the shortcomings of the jury in structions, it is helpful to understand the confusion throughout the trial in th e treatment of the concept of ambiguity. Notwithstanding the trial court’s post- trial suggestion that the theory of ambiguity was not timely presented, both sides w ere permitted to present testimony of the meaning of the contractual notice requirement. See Appellant’s App. Vol. IV at 967-70; Vol. V at 1253-56. Furthermore, the court confusingly referenced the concept of ambiguity in its Instruct ion No. 13:

The claim in this case is for damages resulting fro m a breach of contract. A contract is defined as an agreementto do or not to do a certain thing or things. In this case, the contr act was in writing and is in evidence before you, that is, the Physician S ervices Agreement. A contract is breached or broken when a party to th e contract fails without legal excuse to do what it promised t o do in the contract. You are advised that a contract that is clear and unambiguous in its terms is binding on all parties to the contract. Such a contract should be accepted by you as the ag reement of the parties. Appellant’s App. Vol. III at 740 (emphasis added). In responding to plaintiff’s objection to the italicized portion, the court init ially denied that the instruction told the jury the contract was clear and unambiguou s. See id. Vol. V at 1455.4 The trier of fact must resolve contractual ambiguity by determining the

parties’ intent. See Coker , 650 S.W.2d at 394-95. Defendant Med-National doe s not challenge the legal principles enunciated in pl aintiff’s proposed Instructions Nos. 2, 3, or 4; it challenges only their applicabi lity. -17- Almost immediately thereafter, however, the court s uggested that the contract was unambiguous. See id. (“The question, in my opinion, is not whether anyt hing in the contract is ambiguous, it’s which terms applies to which situation . . . .”). It is from these confusing origins that the jury in structions came. If not a direction that the contract in issue was clear and unambiguous, the reference in Instruction No. 13 to “a contract that is clear and unambiguous” was at least confusing as the only reference in the instructions to the concept of ambiguity. Confusion, however, is the least of the maladies. The principal defect in the instructions was the failure to specify for the jury its obligation to resolve the ambiguity. Plaintiff’s proposed but rejected Instruction Nos. 2, 3, and 4 not only properly expressed the jury’s duty to resolve the ambiguity, but they gave the jury the very tools necessary to resolve the contractual meaning and the parties’ intent. 4 Most importantly, plaintiff’s proposed Instructio n No. 4 would have directed the jury to construe the unclear terms aga inst the drafter, Med-National, if all other factors failed to resolve the parties’ intent. In failing to instruct the jury on its duty to reso lve the ambiguity, in failing to provide the jury with the basic tools of contrac t interpretation, and in failing to-18-

direct the jury to construe the contract against Me d-National, the court not only erred but did so to the significant prejudice of th e plaintiff. These failings deprived the plaintiff of the opportunity to fairly present and the jury to consider a theory of plaintiff’s case, i.e., ambiguity. In this case, such deprivation constitutes prejudicial error. See Perlmutter v. United States Gypsum , 4 F.3d 864, 872-73 (10th Cir. 1993); Sullivan v. NFL , 34 F.3d 1091, 1107-09 (1st Cir. 1994); cf. EEOC v. Atlantic Community School Dist. , 879 F.2d 434, 437 (8th Cir. 1989). We therefore conclude that plaintiff is entitled to a new trial on that portion of his breach of contract claim relating to failure to provide thirty-days’ notice prior to termination. D. Oklahoma Wage Law Claim Plaintiff’s final issue is that the district court erred in granting summary judgment on his Oklahoma wage law claim. Oklahoma law requires an employer to pay an employee’s wages in full at termination, see Okla. Stat. tit. 40, § 165.3.A, and defines “wages” to include “salaries , commissions, holiday and vacation pay, overtime pay, severance or dismissal pay , bonuses and other similar advantages agreed upon between the employer and the employee . . . or provided by the employer to his employees in an established policy,” id. § 165.1.4 (emphasis added). In his complaint, plaintiff alle ged Med-National violated the wage statute by failing to pay him for the period f rom the time his privileges were5 Plaintiff’s contract claim regarding the notice per iod and his Oklahoma

wage law claim generally seek recovery for the same damages--compensation for the period from May 26 until he was notified of his termination and then for an additional thirty days. The Oklahoma wage law also allows recovery of liquidated damages for an employer’s failure to make timely payment of wages due (§ 165.3.B) and of attorney fees and costs (§ 165.9).

6 Because Med-National did not move for summary judgm ent on either of these grounds, the district court should have provi ded notice to plaintiff that it was considering granting summary judgment on these grounds. See Tavery v. United States , 32 F.3d 1423, 1427 n.5 (10th Cir. 1994). Though plaintiff notes on (continued...) -19- placed in abeyance to the earliest time he could have been terminated under the contract, which he contends was thirty days after t he date he received notice of termination. 5 Med-National moved for summary judgment solely onthe basis that plaintiff was not an employee but rather was an ind ependent contractor to whom the statute did not apply. The district court reje cted Med-National’s contention and concluded that plaintiff was an employee for pu rposes of the statute. The court, however, granted summary judgment to Med -National on two alternative bases that neither party had addressed. First, it concluded that there was no evidence that plaintiff performed any work a fter May 26, 1994, and that “[a]lthough plaintiff may be owed money for breach of contract, his claims do not involve any money owed for work actually performed. ” Appellant’s App. Vol. III at 659-60. In addition, the court found that there was a “bona fide disagreement” over the amount of wages owed and that, pursuant to § 165.4, Med-National’s payment of the amount it conceded was due resolved plaintiff’s claim. 66 (...continued)

appeal that the court granted summary judgment on g rounds not raised by Med-National, he does not contend that this was err or. -20- On appeal, plaintiff contends that the contract req uirement of a notice period and corresponding compensation qualifies as severance or dismissal pay under § 165.1.4. We agree with plaintiff’s interpr etation of the statute. Oklahoma courts appear to construe this statute lib erally in favor of the employee. Cf. Green Bay Packaging, Inc. v. Preferred Packaging, Inc. , 932 P.2d 1091, 1099 (Okla. 1996) (holding that employer’s policy of compensating employees for legitimate business expenses brings payment for exp enses within statute). We disagree with the district court that the statute o nly covers “work actually performed.” Severance or dismissal pay ordinarily would not cover work actually performed. Plaintiff’s claim for payment for the n otice period is similar enough to severance or dismissal pay that we conclude it w ould be covered under the

statute. We also conclude the district court misread § 165.4 regarding bona fide disagreements. That section specifically provides that an employee’s acceptance of the employer’s payment of the amount it concedes is due “shall not constitute a release as to the balance of his claim.” Payment m ay relieve an employer from liability for liquidated damages, but it is unclearwhat the full effect of § 165.4 is. Moreover, for a payment to qualify under § 165.4, “ the employer shall give-21-

written notice to the employee of the amount of wag es which he concedes to be due.” Since neither party raised this issue on sum mary judgment, there is no evidence whether Med-National provided proper notic e. We therefore reverse the district court’s grant of summary judgment on this claim.

III The judgment of the district court is AFFIRMED in p art and REVERSED in part, and the case is REMANDED for further proce edings consistent with this order and judgment.

Entered for the Court

Michael R. Murphy Circuit Judge